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Lexis® Practical Guidance: Mergers & Acquisitions

Why Lexis® Practical Guidance: Mergers & Acquisitions ?

Users get direct access to critical, up-to-date information and guidance that they can rely on.

Merger or acquisition transactions are often complex as they involve various parties and numerous pieces of legislation. Lexis® Practical Guidance Mergers & Acquisitions offers a simple, online reference solution to help corporate attorneys, legal advisors, directors and trustees deal with such matters.

This practice area offers crucial insights on how to deal with a merger or an acquisition as well as all the intricacies that may be involved. The content covers all requirements in terms of the Companies Act 71 of 2008, Competition Act 89 of 1998, JSE listings and takeover regulations. Lexis® Practical Guidance Mergers & Acquisitions provides step-by-step guidance on numerous topics such as: due diligence exercises, transactions relating to shares, mergers vs amalgamations and related approvals, as well as competition and exchange control approvals. It also includes high-level discussions on tax consequences as well as the different methods in which property can be valued.

Detailed precedents such as the shareholders' agreement, sale of shares agreement, sale of business agreement and confidentiality agreement as well as templates of required notices, minutes and resolutions are included. Checklists and other useful resources are also provided, to further simplifying otherwise complicated processes.

Lexis® Practical Guidance Mergers & Acquisitions is authored and regularly updated by an array of practicing specialists, ensuring users always have direct access to current legislation and relevant information.

With Lexis® Practical Guidance: Mergers & Acquisitions you get:


Convenient online access to:
  • More than 140 Guidance Notes within 30 Topic Overviews
  • 115 Forms, Precedents and Checklists – ensuring not a single step is missed
  • Legislation & Case Law – access to relevant cases at the click of a button
  • Practice Directives – practical advice on how to interpret the rules of court
  • Other useful resources such as tables, flowcharts and additional readings

Guidance on each step taken in Mergers & Acquisitions:
  • Due diligence reports
  • Valuation methods
  • Starting points in a transaction
  • Regulatory issues relevant to transactions including takeover regulations
  • Understanding founding documents
  • Obtaining resolutions
  • Practical applications of the Companies Act 71 of 2008
  • Repurchase of shares
  • Sale of shares: agreements and approvals
  • Issue of shares: agreements and approvals
  • Buyback of shares: agreements and approvals
  • Amalgamations and mergers: agreements and approvals
  • Sale of business: agreements and approvals
  • New management and memorandum of incorporation
  • The board of directors
  • The shareholders agreement
  • Restructuring in business rescue
  • The business rescue plan
  • Restructuring for BEE ownership
  • The BEE codes
  • Finance arrangements
  • Fronting and risky structures
  • Key tax implications to various transactions

Guidance Notes

Useful reference material that offers direct access to relevant case law, legislation and commentary works, and practical know-how on specific aspects of public labour law.
A few key guidance notes are outlined below. The full list can be viewed in the complete table of contents.


Authorised Shares and Adequate Consideration

This guidance note discusses the term 'adequate consideration' and examines the required approvals when dealing with the issue of shares. It also looks at how to authorise shares for issue in circumstances where this is not provided for in the MOI.

Supplied templates include:

  • A Shareholders' retroactive minute for issue of shares
  • Shareholders' retroactive written resolution for issue of shares
  • Board minute for the issue of shares
  • Board written resolution for issue of shares
  • A Notice of adoption of special resolution in terms of section 60 of the Companies Act 71 of 2008.

Essential Terms of a Sale of Business Agreement

This guidance note provides a detailed template and explains the content of a comprehensive sale of business agreement, including all key clauses, such as:

  • Boilerplate clauses
  • Intellectual property
  • Stock taking
  • Creditors and liabilities
  • Restraints of trade
  • Confidentiality provisions.

Valuation Methods

The assets or shares of a company often require valuations by various parties. This guidance note provides crucial insights and context on the various ways in which valuations can be carried out and also covers the various methods used to value property.

It includes discussions on:

  • Net asset value
  • Discounted cash flow
  • Capitalisation of earnings
  • Intrinsic and derivative methods.

Due Diligence: Request for Information

The first step in conducting a due diligence is the request for information. This guidance note assists with this by providing:

  • Detailed questionnaires for transactions where a thorough due diligence is necessary, including tips on how to work through the questionnaires
  • A checklist of information to request in connection with standard smaller transactions
  • Related draft letters
  • Advice on confidentiality
  • A confidentiality agreement template.

Practical Aids

Precedents, checklists and forms that can be used to offer advice confidently and execute tasks accurately.
A few key resources are listed below. The full list can be viewed in the complete table of contents.

  • Confidentiality agreement
    • A template that details the rights of parties, relating to confidential information.
  • Trust agreement
    • Confirms that the registered holder is not the true owner and regulates how the registered holder must treat the shares.
  • Shareholders' waiver of pre-emptive rights
    • An agreement in which non-selling shareholders waive their pre-emptive rights.
  • Sale of shares agreement
    • Regulates the sale of shares.
  • Demand guarantee
    • A document that obliges the bank to pay the amount stipulated in the guarantee, simply on presentation of the written demand.
  • Notice of adoption of special resolution in terms of section 60 of the Companies Act 71 of 2008
    • A resolution that is required when a vote has been taken in writing instead of at a shareholders' meeting.

Authors










Simon Watson


Keren Watson



LLB, LLM (University of KwaZulu-Natal) (Commercial Law)

Simon Watson is a partner at Cox Yeats within the Commercial Team. Simon has a background in corporate and tax law, and is qualified as both a South African and an Australian lawyer. Simon has advised on a wide range of commercial matters and has acted in a number of private capital and disposal of business transactions on both the sell-side and buy-side. He is an author and contributor to a number of LexisNexis publications, including: the Commentary and Precedents for Partnerships and Joint Ventures.


LLB - summa cum laude (University of KwaZulu-Natal)

Keren Watson is a partner at Cox Yeats, practicing in the Commercial Law Department. Keren is experienced in drafting and negotiating commercial agreements and memoranda of incorporation, corporate restructuring, formation of trusts including family, employee and community trusts and advising on consumer protection law, company law and general business law issues. Keren has assisted numerous foreign clients in establishing operations in South Africa. She is also an author of a number of LexisNexis publications, including: A Practical Guide to the Companies Act.








Jenna Padoa


Jared Nickig



LLB, LLM (University of KwaZulu-Natal)

Jenna Padoa is a partner at Cox Yeats, practicing in the Commercial & Natural Resources Law Team.
Jenna specialises in corporate law, competition law and environmental law, and regularly advises on commercial transactions and contracts. Her expertise includes mergers and acquisitions, merger notifications, corporate finance and re-organisations, general company law and black economic empowerment transactions. Jenna has a keen interest in environmental law and advises clients on all aspects of environmental compliance, including environmental authorisations, water law and waste law compliance.


BA (Wits University), LLB, LLM (Wits University), LLM (Harvard University)

Jared Nickig is a director at Werksmans Attorneys, with a focus on corporate mergers, acquisitions and general commercial law. Jared specialises in takeovers, mergers and acquisitions, corporate reorganisations and corporate governance. Jared has been involved in many key transactions including advising Genesis Capital Partners (Pty) Ltd on its acquisition of a 30% stake in Pefaco International Plc, Real Foods (Pty) Ltd on its acquisition of the Kauai group of companies, Glencore International AG on its acquisition of a 74% stake in Optimum Coal Holdings Ltd and the subsequent delisting of Optimum Coal Holdings Ltd from the JSE.


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